United States v. David Duvall
740 F.3d 604
D.C. Cir.2013Background
- This order denies rehearing en banc of a panel decision; three judges filed separate opinions concurring in the denial.
- Central legal question: how to apply Marks v. United States when the Supreme Court issues a splintered decision (no single opinion for five+) and which Freeman v. United States opinion (plurality, concurrence, or dissent) is binding for § 3582(c)(2) eligibility of Rule 11(c)(1)(C) pleas.
- United States v. Epps (707 F.3d 337) is the panel decision at issue; Epps followed the Freeman plurality rather than Justice Sotomayor’s concurrence and held some Rule 11(c)(1)(C) sentences can be eligible for § 3582(c)(2) relief.
- Judge Kavanaugh (concurring) contends Epps misapplied Marks and that Justice Sotomayor’s Freeman concurrence is the controlling “narrowest” opinion; he urges eventual en banc review to overturn Epps.
- Judges Rogers and Williams (concurring) defend the court’s adherence to King v. Palmer’s Marks interpretation, arguing Epps was consistent with binding circuit precedent and that King correctly requires a logical subset/common-rationale test before treating a concurrence as controlling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper application of Marks to splintered Supreme Court decisions | Marks should identify the opinion that yields results with which a majority would necessarily agree (middle-ground/concurrence can control) | King v. Palmer requires a common rationale/subset relationship among majority opinions before one is binding | Panel/circuit adheres to King: a concurrence is controlling only if it is a logical subset (common rationale) of other majority opinions |
| Which Freeman opinion controls whether Rule 11(c)(1)(C) sentences are “based on” Guidelines for § 3582(c)(2) | Sotomayor concurrence is the narrowest; it produces middle-ground results and thus should govern | Epps panel treated the plurality as controlling under King’s subset/common-rationale approach | Epps held no single controlling opinion under Marks/King for Freeman, but applied plurality reasoning to allow relief in some cases |
| Validity of Epps’ approach (did it misapply Marks/King?) | Epps misapplied Marks by refusing to treat Sotomayor’s concurrence as controlling and by adopting a novel ‘‘no-common-rationale’’ bar | Epps followed King (en banc precedent): where opinions do not form a logical subset, no narrowest opinion controls and circuit must adopt appropriate course | Rogers/Williams: Epps consistent with King; Kavanaugh: Epps is a flawed application and should be overruled en banc when presented |
| Whether to grant rehearing en banc in Duvall (and related review of Epps) | Duvall (seeking benefit of Epps) urges en banc to confirm or adopt Epps approach | Judges note en banc petition not voted for; some judges prefer awaiting a case squarely asking to revisit Epps en banc | Petition for rehearing en banc denied; concurrencies reserve view that Epps may warrant future en banc review |
Key Cases Cited
- Marks v. United States, 430 U.S. 188 (1977) (Marks test for holding from splintered decisions: the position of those concurring in judgment on the "narrowest grounds")
- King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) (en banc) (interpreting Marks to require a logical-subset/common-rationale before a concurrence is binding)
- Freeman v. United States, 131 S. Ct. 2685 (2011) (Supreme Court splintered 4-1-4 on § 3582(c)(2) eligibility for Rule 11(c)(1)(C) plea sentences)
- United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013) (panel applied plurality reasoning from Freeman; subject of rehearing debate)
- United States v. Berry, 618 F.3d 13 (D.C. Cir. 2010) (circuit precedent interpreting Guidelines §1B1.10 and §3582(c)(2) limits in career-offender/mandatory-minimum contexts)
- O’Dell v. Netherland, 521 U.S. 151 (1997) (example of Supreme Court selecting a controlling opinion from splintered precedent)